Should you talk to police? It's your right to remain silent

Days later, a police officer shows up asking to talk to him about a burglary and graffiti sprayed at the girl's home.

What do you do? Do you say, "Yes," or do you call a lawyer?

The answer largely depends upon social background, upbringing, education and exposure to the court system.

Those who say "No," invoke their 5th and 6th Amendment Rights against self-incrimination and for legal representation. Central Florida defense lawyers say those represent the greatest protection available for fair treatment in court.

"People should be very cautious if they're being interviewed," said Donna Elm, Federal Public Defender for the Middle District of Florida. "It is good in practice if the police want to talk to you, you check with a lawyer first."

Why?

"The most important thing to bear in mind is that we usually talk without engaging our brain and this can get us into a tremendous amount of trouble with the law," Elm said. "Just because you exercise the right to get an attorney doesn't mean you're not going to talk to police. . . . We don't block it unless you look like a suspect."

Orange-Osceola Public Defender Bob Wesley described the right not to answer a police officer's questions as a cornerstone of liberty. The drafters of the Constitution added the amendment to protect Americans from centuries of legal abuse in Europe that had permitted subterfuge and forced confessions.

Orange-Osceola State Attorney Lawson Lamar's top aide, Chief Assistant Bill Vose, agreed that the 5th and 6th Amendments were adopted to regulate government and limit the overzealous application of its power.

As a prosecutor, Vose said it would be improper for him to give an opinion on when someone should invoke the right to silence and legal representation.

"We don't have individual clients. In theory, we're the representative of society. . . . It's usually a matter of conscience, I'd say."

And it's a simple matter of common sense, Osceola County lawyer Charles B. Tiffany said.

"Nobody ever got in trouble for what they didn't say," Tiffany said. "And I tell all of my clients that cops are not your friends until you need one."

Miranda rights — the 1966 U.S. Supreme Court decision requiring police to tell suspects of their right to remain silent and to be advised by a lawyer — applies only when a suspect is arrested and police want to question that person. Even with that protection, lawyers say as few as one in four people in police custody insist on their right to speak to a lawyer instead of talking to cops.

The landmark Miranda vs. Arizona decision involved the 1963 conviction of Ernesto Miranda, who confessed to kidnapping and raping a teenager in Phoenix after police failed to inform him of his right to remain silent and be represented by a lawyer. His 30-year prison sentence was overturned by the U.S. Supreme Court. He was re-tried without the confession as evidence and sentenced to 11 years in prison.

"It's by the hard cases that everyone's rights are protected," Wesley said.

Unlike some states, Florida does not require that police interviews and suspect confessions be recorded as verification about what was said. Investigators also can use any bits of information — conversations, documents, observations — that someone volunteers as evidence.

That's why Kissimmee lawyer Don Waggoner advises anyone being questioned by a police officer to ask the reason for the questioning and to challenge requests such as submitting to a vehicle search after a traffic stop.

"The answer is, 'No, officer, you may not. Am I free to go?' " Waggoner said. "What most people think is, if you're honest with cops, they're going to give you some slack and let you go. It doesn't work that way."

On an unknown number of occasions, people have given false confessions — admitting to a crime they did not commit — under police questioning.

Among the best-known examples of false confessions came in the 1989 Central Park Jogger Case. Five teenagers in New York City confessed to participating a rape they didn't commit. They were convicted and served 13 years in prison before DNA tests identified the real rapist.

False confessions seem unlikely in most instances of being questioned by police. But Wesley, Waggoner and others say few members of the public know that trickery, deceit and psychology are all legal means for police to obtain confessions.

And years of research have taught investigators the best techniques to keep suspects talking and direct them away from asking to speak to a lawyer. Legally, the request would end immediately any questioning.

"It's an arena in which the everyday citizen has little experience," Wesley said of investigators trained to stage manage interviews that lawyers would stop immediately. "It's the province of the constable."